Punjab

StateCommission

FA/13/85

Jatinder Paul Singh - Complainant(s)

Versus

Toyota Kirloskar Motor - Opp.Party(s)

Munish Goel

09 Mar 2015

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB    DAKSHIN MARG, SECTOR 37-A, CHANDIGARH.

 

  First Appeal No.85 of 2013                                                      

             Date of institution  :    24.01.2013

Date of decision     :    09.03.2015

 

Jatinder Paul Singh, Partner M/s G.S. Enterprises, Footbal Chowk, Jalandhar.

…….Appellant/Complainant

Versus

1.      Toyota Kirloskar Motor Limited, Plot No.1, Bidaeli Industrial      Area, P.O. Bidaeli, Ramanangal Taluk, Bangalore Rural     District-09 (Manufacturers).

 

2.      M/s A.N.R. Motors Private Limited, G.T. Road, Paragpur,         Jalandhar, Authorized Dealer of opposite party No.1.

                                                          …Respondents/Opposite Parties 

First Appeal against the order dated 06.12.2012 of the District Consumer Disputes Redressal Forum, Jalandhar.

Quorum:- 

 

          Hon’ble Mr. Justice Gurdev Singh, President.

                        Shri Baldev Singh Sekhon, Member.

                        Mrs. Surinder Pal Kaur, Member.

Present:-

          For the appellant            : Shri Munish Goel, Advocate.

          For respondent No.1      : Shri S.R. Bansal, Advocate.

          For respondent No.2      : None.

 

 

JUSTICE GURDEV SINGH,  PRESIDENT :

 

                    This appeal has been preferred by the appellant/ complainant against the order dated 06.12.2012 passed by District Consumer Disputes Redressal Forum, Jalandhar (in short, “District Forum”), vide which the complaint filed by him, under Section 12 of the Consumer Protection Act, 1986 (in short, “the Act”) was dismissed; as not maintainable, on the ground that he cannot be termed as a “consumer”.

2. Briefly stated, the facts are that the complainant, on the assurance of opposite party No.2 that the car make Corolla Altis was the best in that segment of price, purchased that car on 01.07.2009 for Rs.12,11,338/-. While driving the car to his house, he found that a peculiar sound was coming from the roof thereof. He immediately apprised the Sales Manager, Mr. Ajay Sharma, of opposite party No.2 of that problem. On the next day, he approached that opposite party and the mechanic thereof opened the ceiling interiors and made some rectification, but the defect persisted. The defect could not be removed in spite of the fact that he repeatedly approached opposite party No.2 and had been approaching the TKM (Manufacturer), Customer Care. On 25.07.2009, he received a call from Mr. Srivastva, Service Manager that the car had been repaired and the same would be delivered at his house within 15 minutes, but the same was not delivered at his house. When he went to the work place of opposite party No.2, he was shocked to find that the upholstery pertaining to the roof and fittings had been removed; the dashboard, ceiling, seats and gear levers had been dismantled; and were lying helter skelter. He was given in writing that the matter regarding the repairs of the car had been handed over to the Company Engineer, on account of the failure of opposite party No.2 to repair the same. After receiving the mail that the car was ready for delivery after repairs, he, accompanied by Gurinder Pal Singh, went to the workshop of opposite party No.2 on 27.07.2009 and when he took the road-drive, along with the Senior Technician and the Customer Relation Manager, he found that the problem regarding the noise was still persisting. He brought the car, by recording the remarks that he was not satisfied with the condition of the car and the delivery had been taken under protest. The opposite parties failed to remove the squeaking noise, in spite of the efforts made by them. He got the car tested from the Automobile Engineer, who reported that the said noise was being heard from the ceiling even on the plain roads, while being driven at a normal speed; after applying the brakes. Thus, there was defect in the fundamental structure of the car, which was dangerous to life.The opposite parties did not pay any heed to the defect in the car, in spite of the issuance of the legal notice dated 12.10.2009. They have shown unethical and unreasonable approach to the purchaser of heavily priced car. In the complaint filed by the complainant under Section 12 of the Act, he prayed for the issuance of directions to the opposite parties to replace the car with a new one or in the alternative, to refund the price thereof, along with Rs.36,250/- , as the insurance charges and interest @18 per annum from the date of payment of the price till the realization of that amount. He also prayed for issuance of directions to them for payment of Rs.2,00,000/-, as compensation for the harassment, mental tension, pain and agony suffered by him. He also pleaded in the complaint that he is a consumer, seeking redressal against the deficiency in service, as he did not purchase the car for resale or for commercial purposes.
3. The opposite parties filed joint written reply before the District Forum. They admitted in the written reply that the car, in question, was manufactured by opposite party No.1 and was purchased from opposite party No.2 for a sum of Rs.12,11,338/- and that the complainant had been approaching opposite party No.2, with the complaints that some sound was coming from the ceiling of the car. While denying the other allegations made in the complaint, they pleaded that the vehicles are being manufactured by opposite party No.1 in collaboration of Toyota of Japan and the same are being delivered to the customers, only after observing strict quality control at every step of manufacturing thereof and those carry warranty against manufacturing defect with the specified limits. When the complainant came with the complaint of the sound, coming from the ceiling of the car, that was immediately looked after by the Workshop Incharge and no such unusual sound was coming from the roof. No moving part/parts are fitted in the ceiling of the car and the roofing thereof consists of steel sheet, covered with cloth lining underneath. There was no question of any sound coming therefrom, as no mechanical part was fitted therein. There was no reason for the staff of opposite party No.2 to open the roofing. It was only in order to satisfy the complainant that the roof cloth was removed and was re-fixed in the original shape. No unusual sound was found while taking the test-drive. The complainant approached opposite party No.1 on the website for registration of the complaint, without any valid reason. Whenever any complaint is received from the customer, it has become a religion for its staff to attend the complaint and it was on that ground that the complaint made by the complainant was attended by its staff every time. It was in respect of the complaint of the complainant, that the North Service Head of opposite party No.1 was deputed to visit the showroom of opposite party No.2, to look into the same. Thereafter, the car was summoned to the workshop for rectification of the defect, pointed out by the complainant, and roofing of the car from inside was got opened under supervision of that Service Head and was re-fixed, exactly as the same was in the new car. Thereafter, the car was delivered to the complainant and he did not lodge any complaint at that time. Nothing unusual was found in the roofing of the car. Every time, the car was delivered to the complainant in perfect condition. He has no cause of action to file this complaint. The remarks, made by him on the job card, were uncalled for. There was nothing in the car to make the same unsafe. As there was no manufacturing defect in the car, so there was no question of replacing the same. Every time, the complaint so made by the complainant regarding the car was promptly attended to by them and every time, the car was delivered to him in perfect condition. They are not guilty of providing deficient service, nor of unfair trade practice. They prayed for the dismissal of the complaint, with compensatory costs.
4.           Both the sides produced evidence in support of their respective averments before the District Forum, which after going through the same and hearing learned counsel on their behalf, dismissed the complaint, vide aforesaid order.
5. We have heard the learned counsel for both the sides and have carefully gone through the records of the case.
6. It was argued by the learned counsel for the complainant that it was wrongly concluded by the District Forum that the complainant does not fall under the definition of “consumer”, as contained in the Act. From the allegations made in the complaint and from the evidence produced in support of those allegations, it stands proved that the car was purchased by the complainant for his personal use and not for resale or for commercial purposes. Therefore, he clearly falls under the definition of the “consumer”, as given in Section 2 (1) (d) of the Act. In these circumstances, the finding recorded by the District Forum, to the contrary, is liable to be set aside. In support of his submissions, he relied upon (DEEPAK K. RAMAN Vs. MARUTI UDYOG LTD. & ORS.) III (2010) CPJ 381 (NC).
7. On the other hand, it was argued by the learned counsel for the opposite parties that correct finding was recorded by the District Forum, after taking into consideration the averments of the parties and the evidence produced in support of those averments. In fact, the car was purchased in the name of the firm M/s G.S. Enterprises and the complainant is only a partner of that firm. Neither it is the case of the complainant, nor any evidence was produced for proving that the car was purchased in the name of the firm for his personal use. The firm is carrying on the business and the car was purchased for using the same for running that business itself. Therefore, the complainant does not fall under the definition of the “consumer”. In support of his submissions, he relied upon (SHIVOM PROJECTS PRIVATE LIMITED VS.  TOYOTA KIRLOSKAR MOTOR PVT. LTD. & ORS.) I (2015) CPJ 422 (NC).
8. It is a fact that the car was purchased by the firm M/s G.S. Enterprises, as is clear from the Tax Invoice Ex.C-5. It was never purchased in the name of the complainant. All the documents were in the name of the firm. It has been alleged in Para No.26 of the complaint that the complainant is a consumer, seeking redressal against deficiency in service, as he did not purchase the car for resale or for any commercial purpose. There is no denial of that fact in the written reply by the opposite parties. In Deepak K. Raman’s case (supra), it was held that merely because the vehicle has been purchased by the partnership firm, it cannot be said that the same was purchased for any commercial purpose, because it was neither intended to be resold with a view to earn any profit etc. nor for running it as a commercial transport. In that case, the partner of the firm was held to be the consumer, in view of the said observation.
9. However, different view was taken by the Hon’ble National Commission in Shivom Projects Private Limited’s case (supra); in which whole of the case law, on the definition of “consumer”, was discussed. In that case, the car was not purchased exclusively for the purpose of earning livelihood by means of self-employment for the Director of the company. The same was not for livelihood of the Director or for his personal use. It was held therein that he has to use the car only for commercial purpose and that is why the same was purchased in the name of the company.
10. No doubt, in the present case, we are dealing with a firm and the partner and not with a private limited company, but the ratio of the second judgment fully applies to the facts of the present case. Even if the car was purchased, not for resale or for commercial purposes, the fact remains that it was purchased in the name of the firm for use by the partner, who was to carry on the business of the firm. It is not the case of the complainant that it was purchased for his personal use or for his personal livelihood. The use of the car was meant for running the business of the firm; which itself was a commercial transaction.It was correctly held by the District Forum that the complainant does not fall under the definition of the “consumer”.
11. We do not find any merit in this appeal and the same is hereby dismissed.
12. The arguments in this case were heard on 03.03.2015 and the order was reserved.Now, the order be communicated to the parties.
13. The appeal could not be decided within the statutory period due to heavy pendency of court cases.

1.  

    

                                                           (JUSTICE GURDEV SINGH)

                                                                          PRESIDENT  

                                                            

    

    

                                                           (BALDEV SINGH SEKHON)

                                                                            MEMBER

                                                            

    

    

                                                         (MRS. SURINDER PAL KAUR)

   March 09, 2015                                  MEMBER

   (Gurmeet S)